The Enterprise and Regulatory Reform Act – Theft by Stealth?

I have just been reading a few articles about this controversial act that has been passed by the UK Government. At face value it seems innocent enough until you start to read a little deeper. In essence the bill is designed to protect users of ‘orphan works’ where copyright ownership cannot be established.

I don’t normally like to get involved in politics and the likes but as a photographer and owner of many online images I feel the potential implications to all photographers is very significant so felt it right and proper to at least discuss the matter. What also concerns me is how this has all happened under the radar with little awareness of the potential effects upon us.

The use of the phrase ‘orphan works’ is somewhat misleading. What constitutes an ‘orphan work’ ? A 50-year-old image in an archive of unknown ownership? Perhaps, what about a digital image taken 10 years ago that has been posted on some obscure website that no-one has heard of and even fewer visit. Is it morally acceptable to use, and more importantly profit from, these images without any reference or recompense to the copyright owners?

I’m sure we could debate the pros and cons and morality of profiting from these images and get nowhere fast.

What I am sure about though is the following scenario that affects me and potentially all of you reading this. Unfortunately it also affects a sizable proportion of people who don’t know of this legislation or my blog posting. Consider the image below – would this be described as an ‘orphan work’?

gold and red brick wall

No 61

Well, I’ll make it easy for you – its mine. I took it, I own the copyright and if someone would like to use it I am more than happy to discuss terms and recompense if appropriate.

Now consider this

Orphan documents

Here is a snapshot of my desktop – in the background is the image I also uploaded to facebook. I right clicked and downloaded the image and looked at the image data. Lo and behold MY image has been stripped of all metadata and rendered it effectively as an ‘orphan’ and therefore potentially fair game for usage under the new act. If a company wished to use my image they would have to undertake ‘a search of due diligence’ to try to identify me but how do you define due diligence?

Now, more worrying is the volume of quality ‘orphan’ works displayed on social media sites and how many 1000’s of  ‘orphan works’ people are unknowingly creating every single day. We all know for a fact there are some astounding works out there. How long before an enterprising company come along and start ‘scraping’ and collecting copies of all these social media ‘orphan works’. You have the potential of seeing an enormous image library coming into existence without paying a single penny out in royalties on the back of unknown and unheralded photographers.

How do you protect yourself? Should meta data stripping by social media sites now be banned? Do we all stop uploading to social media sites? I dont know, but, whilst there is little knowledge and even less discussion amongst photographers, one thing is for sure – ‘orphan works’ are multiplying by the 1000s each and every day.

I hope this post has in some small part alerted people to the potential risks to your copyright – to get a more detailed overview have a look at some of these articles that discuss the details in more depth

Thats me finished on the soapbox – back to photography now.

I would love to know your thoughts on this matter – is it all something about nothing or is there a genuine need for concern?




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